Appellate Division Strikes Down NJDEP Public Access Rules

December 2015

CSG Environmental Law Alert

On December 22, 2015, the New Jersey Superior Court, Appellate Division, struck down the New Jersey Department of Environmental Protection public access regulations. These regulations, which were a significant re-write of public access regulations previously struck down by the Appellate Division in 2009, were completely invalidated by the Appellate Division as being beyond the scope of both the “public trust doctrine” and the Coastal Area Facilities Review Act (CAFRA). This decision now puts the public access requirements at a standstill and impacts the regulated community applying for coastal development permits, such as CAFRA permits and Waterfront Development permits.

NJDEP originally wrote its updated public access requirements in 2007. Those rules imposed extensive access requirements on all coastal permittees, and were criticized as grinding coastal permitting ground to a halt. In 2009, the Borough of Avalon successfully overturned certain municipal access requirements in the existing rules.

After Governor Chris Christie was elected in 2009, the Public Access Rules were identified early-on as needing significant reform. After a significant stakeholder process, NJDEP adopted Public Access Rules on March 19, 2012. The 2012 Public Access Rules emphasized public access planning by municipalities. The new rules allowed municipalities to create “Municipal Public Access Plans” (MPAPs) as part of the town’s master plan, which, once adopted by NJDEP, would become the mechanism by which coastal permittees would provide public access. Municipalities that did not adopt MPAPs were subject to specific NJDEP rules governing access to certain types of facilities obtaining coastal permits in municipalities that have not adopted MPAPs. The 2012 Public Access rules were subsequently challenged.

In a 3-0 decision, the Appellate Division sided with the groups challenging the rule, specifically focusing on the municipal planning process. The court ruled that neither the “public trust doctrine” nor CAFRA supported the adoption of the rules. In its decision, the court recognized the breadth of the public trust doctrine which “encompasses the ‘legal principal’ that the State holds 'ownership, dominion and sovereignty over tidally flowed lands in trust for the people.'” However, absent express authorization from the Legislature, the Appellate Division ruled that the public trust doctrine alone could not justify NJDEP’s adoption of the 2012 Public Access Rules. The Court also held that MPAP requirements had no statutory basis.

This decision significantly impacts NJDEP’s coastal permitting process. Parties seeking coastal permits from NJDEP under either CAFRA or the Waterfront Development Act will not be required to address public access unless the Supreme Court or the Legislature takes action. Parties who have obtained coastal permits with public access requirements may now be able to assert that such requirements are unenforceable. NJDEP now has to decide whether it will pursue certification from the Supreme Court of New Jersey, or take a different approach. Further, NJDEP has stated that it has given 40 grants to municipalities that have engaged in the municipal planning process which are called into question.

If you would like further information on the impact of the Appellate Division’s decision, please contact your Chiesa Shahinian & Giantomasi PC attorney or the authors listed below.